News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Another en banc grant today — this one is a big Virgin Islands case

I posted earlier today about the Third Circuit’s order granting rehearing en banc in Hayes v. Harvey. A thoughtful reader has alerted me that the court granted en banc rehearing today in a second case, too.

The case is Vooys v. Bentley, No. 16-3912. The order granting rehearing was issued sua sponte, and it indicates that a majority “determined that the case is controlled by a prior decision of the court which should be reconsidered.”

The “prior decision” appears to be United Industrial ex rel. Bason v. Gov’t Virgin Islands, a 2014 published opinion I discussed and linked to here. Bason held that, although Congress stripped the Third Circuit of its certiorari jurisdiction over Virgin Islands cases in 2012, the court retained cert jurisdiction over cases that were filed in VI courts before 2012.

Both the respondents and an amicus argued that Bason was wrongly decided and conflicted with prior Supreme Court caselaw. (The amicus, the VI Bar Ass’n, argued that Bason misapplied Sinochem to decide an issue without first confirming subject-matter jurisdiction, broadly the same argument I unsuccessfully made last year for rehearing in Hoffman v. Nordic Naturals.)

While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.